What is wrong with these two pictures?
Picture 1: In Colorado in August, shortly before Barack Obama was slated to accept the Democratic nomination for President in Denver, three men were arrested. One wore a ring with a swastika insignia. At least two were known to have expressed white supremacist views. The three were in possession of two high-powered rifles, two wigs, camouflage clothing, a bulletproof vest, walkie-talkies, drugs, and false ID’s. Among themselves they talked of killing Barack Obama to prevent an N-word from living in the White House and planned to find “high ground to set up and shoot.” Shortly after their arrest prosecutors decided not to charge any of the three with conspiring to assassinate Obama or with any other national security related crimes. The explanation offered was that “an assassination attempt was unlikely.” According to the U.S. Attorney in Denver, the talk was, “more aspirational, perhaps, than operational…A bunch of meth heads get together, we don’t know why they do what they do…People do lots of stupid things on meth…If you’re talking about a true threat, there has to be some evidence they’re not just talking about it or thinking about it, especially in a drug-induced state.”
Picture 2: FBI agents pay tens of thousands of dollars to a convicted felon to approach a group of Muslim friends posing as a “big brother” with strong Islamic values and Egyptian military training. The practiced con-man desperately needs government help to avoid deportation. The FBI commissions him to systematically encourage the Muslims, who had taped themselves playing paint-ball and shouting Jihadi slogans, to engage in actual “jihad.” The informer eggs them on to do something real to express their commitment to Islam, like attacking Fort Dix. The informant provides equipment to download jihadi videos, arranges for the delivery and sale of weaponry, and promises the plans to the base to enable an attack to be made. The government swoops down on the men as soon as they are in possession of weapons under the doctrine of “pre-emptive prosecution.” The men are charged under the terrorism laws with multiple crimes including attempted murder and conspiracy to attack a military base. After five days of deliberation a jury clears them of attempted murder but convicts all five of conspiracy — maximum sentence, life in prison. Prosecutors “acknowledged the men were probably months away from an attack and did not necessarily have a specific plan,” but labeled them “radical Islamists” whose goal was jihad and to kill American troops.
What is striking in these two pictures, of course, is the different ways prosecutorial discretion is applied. In Colorado, where the most serious kind of political murder was being contemplated by men with weapons and a violent criminal past, the decision not to charge the men was the result of fine-grained judgment by the prosecution. Since, although possible, the attack on Obama was considered to be “unlikely,” no charges were brought. One can only imagine how different the decision of these prosecutors would have been had the men been Muslims instead of neo-Nazi types. As is apparent from the Fort Dix case, under the scripts of the War on Terror, sleeper cells of dangerous Muslim terrorists are lurking throughout American society. Pre-emptive prosecution is the policy — arrest them before they break laws. Pre-emptive, pre-emptive prosecution, however, has now become the norm. Incite Muslims into words and actions that could form the basis for a pre-emptive prosecution, then arrest them. The Fort Dix case is just another in a long string of War on Terror prosecutions based not on any actual threat, but on the “aspirations” of law enforcement agencies and operatives to advance budgets and careers, and to star in some sort of real-life episode of “24.” The result has been a pattern of decisions by prosecutors to bring charges not when, as in Colorado, there seems to be a real and not just “aspirational” threat, but when it seems like it might be possible to convince a jury not to accept the “entrapment” defense that will of a certainty be offered by the defense.
In New Jersey, the prosecution won its bet that the entrapment defense could be defeated. The rest of us lost. The FBI, half of whose budget is devoted to counter-terrorism (in the absence of any evidence of real domestic terrorism threats), will be emboldened to launch even more aggressive entrapments of Muslims. Prosecutors will see prestige and political careers as available down this path. The War on Terror feeds on the anxieties and false satisfactions of these show trials. What is needed is orders from above that terrorist activity is criminal and will be dealt with seriously, not as part of a political program designed, as has been the War on Terror, to justify the contraction of American democracy and the expansion of America’s military role abroad.
PsySR member Ian S. Lustick, Ph.D., is Bess W. Heyman Professor of Political Science at the University of Pennsylvania and author of Trapped in the War on Terror (2006). For more information, see http://www.trappedinthewaronterror.com. Ian can be reached at firstname.lastname@example.org.